cannot do so for loss of traffic caused by a new highway by bridge or ferry made to provide for a new traffic.

As was stated above, the owner of a ferry is liable for Liability of injury to the rights of subjects of the realm for wilful lessees and

obstruction or neglect of duty.1

owners of ferries for

injury by

In Willoughby v. Horridge, the lessees of a ferry pro- negligence. vided steam boats for the conveyance of passengers, goods, and cattle, and also slips for landing and embarking them, which were generally sufficient for that purpose. It was held, that they were liable for an injury to a passenger's horse in consequence of the side rail of the landing slip (of the dangerous state of which they had been forewarned) giving way, although the horse was at the time under the owner's control and management.

A common carrier by water stands on the same footing A common as a common carrier by land.3

The carrier does not insure against the irresistible act of nature, nor against defects in the thing carried itself, or

both taken together; and if he can show that either the

carrier by water is on

the same footing as one on land, and does not insure against

act of nature or the defect of the thing itself, or both taken the irresistible together, formed the sole, direct, and irresistible cause of act of nature. the loss, he is discharged.1

In Walker v. Jackson, it was held, that a contract to carry and land a carriage and jewellery, could not be implied. from the mere character of the defendants as owners of the ferry, but that it was a question for the jury whether there was in fact such a contract. The plaintiff went on board defendants' steam ferry boat with his horse and carriage paying defendants' charge for a light four-wheeled phaëton. Jewellery and watches of great value were in a box under the seat, which defendants did not know. The carriage was taken safely across the river, but on landing fell into the

1 See ante, p. 487; Stephen's Blackstone, vol. i. pp. 683, 684; Willes, 512, n.; Payne v. Partridge, 1 Show. 231; 2 Roll. Abr. 140.

2 12 C. B. 742.

3 Rich v. Kneeland, Cro. Jac. 330; Hob. 17.

4 Nugent v. Smith, 1 C. P. D. 423; see the judgments in this case, in which the law as to the liability of carriers was fully reviewed.

5 10 M. & W. 161.

Neglect of duty will not justify disturbance.

Ferry tolls.

river and the jewellery was injured. It was held, that the plaintiff's right of action was not affected by his not having communicated the fact that the jewellery was in the carriage that if a contract to land was established, it was a question for the jury whether the landing was complete under the circumstances; and also that to rebut usage to take and land carriages, a notice not visible to those who came in carriages, that defendants did not undertake to land carriages and would be responsible for no injury, was not admissible.

To an action on the case for disturbance of the plaintiff's ferry by the defendant plying a boat from and to the same places, from and to which the plaintiff's ferry plies, it is no answer to prove that plaintiff had neglected his ferry to the inconvenience of the public before the establishment of that of the defendant, or to show that 2d. had been of late demanded and taken by the plaintiff, whereas formerly only 1d. was taken.1

Anguish v. Ebden2 was an action for toll brought by the owner of an ancient ferry, at the trial of which it transpired that the plaintiff had leased the tolls of the ferry for a term of years, but that the lease was not under seal. The counsel for the defendant submitted that the plaintiff should be nonsuited; but the learned judge was of opinion that tolls lying in grant and not in tenure, no interest in law passed by the agreement for letting the tolls because it was not under seal, and that the action was therefore maintainable. If the plaintiff had sued for an injury done to his interest as a reversioner in the ferry, he would have been defeated for want of proof of an existing valid lease. The plaintiff recovered.

Lord Coke3 defines "passage" as a ferry for the passage of men and cattle over water, for which the owner has

1 Peter v. Kendal, 6 B. & C. 703; see Gunning on Tolls, p. 110. See also Anguish v. Ebden, Bury Summer Assizes, 1830, cor. Parke, J.

2 Bury Summer Assizes, 1830, cor. Parke, J. Cf. Duke of Somer

set v. Fogwell, 5 B. & C. 875; R. v. North Duffield, 3 M. & S. 247; see Gunning, p. 111.

3 In Jehu Jebb's case, 8 Rep. 46; see Gunning, p. 106.

a toll; but it has been said in an old case1 that a ferry is in respect of the landing-place, and not of the water. The water may belong to one and the ferry to another,— as it is of ferries on the Thames, where in some places the Archbishop of Canterbury has the ferry, and the Lord Mayor of London the interest in the water.2

The individuals or all the inhabitants of a particular town may, by custom, have a right of passage over a ferry without paying toll; for such a custom may reasonably have had its origin in an agreement that the inhabitants of the town should be at the charge of procuring the grant, and that, in consideration of that, another should provide a boat and take toll at the ferry of all but the inhabitants, and that they should pass toll free. Such an agreement would be good at this day, and the interest of the owner of the ferry would be encumbered with the discharge of the inhabitants of the town from toll for passing over the ferry in his boat.

Bridges.

Wharton defines a bridge to be "a building of brick, Definition. "stone, wood, or iron across a river, ditch, valley, or other place for the convenience, ease, and benefit of travellers."

trinoda necessi

In early times the expense of repairing bridges was Repair at part of the trinoda necessitas, to which, in accordance with common law in early times feudal laws, every man's estate was subject,—viz. expeditio part of the contra hostem, arcium constructio, et pontium reparatio.5 tas. According to Blackstone, the reparation of bridges included that of roads; and hence every parish is bound to keep the high roads passing through it, and, con

Inhabitants of Ipswich v. Browne, Saville, 11; see Gunning on Tolls, p. 106.

2 Gunning, p. 106.

3 Payne v. Partridge, Carth. 191; 1 Show. 243, 255; 3 Mod. 289; 1 Salk. 12; Comb. 180; Holt, 6; see Gunning, p. 107.

4 Wharton's Law Lexicon, 4th ed. p. 144.

Stephen's Blackstone, vol. iii. 6th ed. p. 242; Bl. Com. 16th ed. vol. i. p. 357.

66

6 Bl. Com. vol. i. p. 357. As in the Roman law: "ad instructiones reparationesque itinerum et pon"tium nullum genus hominum, "nulliusque dignitatis ac venera"tionis meritis cessare oportet;" c. 11, 74, 4.

Statutory
provisions.
Magna
Charta.

c. 5.

sequently, the bridges, in good and sufficient repair. But while the care of roads still devolves on parishes, that of bridges has passed for the most part to the counties at large in which they are situate.1

By Magna Charta,2 it was provided "that no town or "freeman shall be distrained to make bridges nor banks "but such as of old time and of right have accustomed "to make them in the time of King Henry our grandfather;"—and the liability of individuals or particular places to repair ratione tenure was thus fixed, and the feudal burthen somewhat alleviated. The liability of the county at common law to repair was fully affirmed by 22 Hen. VIII. the passing of 22 Hen. VIII. c. 5,5 whereby "justices "of peace" were "empowered to inquire of repairs "of bridges and award process against offenders as the king's justices of his bench use commonly to do, or as "it shall seem by their discretion to be necessary and "convenient for the speedy amendment of such bridges" (sect. 1). By sect. 2, in order to ascertain what persons shall be liable to the repair of bridges, it is enacted1st, that if the said bridges are without a city or town corporate, they shall be made by the inhabitants "of the "shire or riding within which the said bridge decayed "shall happen to be;" 2nd, "If within the city or town. "corporate, then by the inhabitants of every such city or "town corporate;" and 3rd, "If part of any such bridges decayed happen to be one in one shire, riding, city, or "town corporate, and the other part thereof in another shire, riding, city, or town corporate, or if part be within "the limits of any city or town corporate, and part with"out or part within one riding and part within another,

Sect. 2.

66

66

1 Stephen's Blackstone, 6th ed. vol. iii. p. 242; Viner's Abridgment, Bridges; and see Re Newport Bridge, 2 Ell. & Ell. 377.

29 Hen. III. c. 15 (Ruff.).

3 See Baker v. Greenhill, 3 Q. B. 148; Reg. v. Bedfordshire, 4 Ell. & Bl. 535; Stephen's Blackstone,

vol. iii. p. 242; see post, p. 527; Mag. Car. c. 15, applies only to the making and not to the repairing of Bridges; Rex v. West Riding of Yorkshire, 5 Burr. 2594.

4 1 Bl. Com. p. 357, n. 15. 5 An Act concerning the amendment of bridges in highways.

"that then, in every such case, the inhabitants of the "shires, ridings, or towns corporate shall be charged and "chargeable to amend, make, and repair such part and

portion of such bridges so decayed as shall be and be "within the limits of the shire, riding, city, or town cor"porate wherein they be inhabited at the time of the same decays."

Sect. 7 makes provision for the repairing of highways 22 Hen. VIII. at the end, making the liability for repair extend to "such c. 5, s. 7. "part and portion of the highways in every part of this

"realm as well within franchise as without, as lie next

adjoining to any ends of any bridges within this realm "distant from any of the said ends by the space of 300 66 feet."1

Of the numerous important statutes relating to bridges, 5 & 6 Will.

IV. c. 50, s.

21.